Delhi District Court
Pramod Kumar vs . State on 1 August, 2017
CA No.04/16
Pramod Kumar Vs. State
IN THE COURT OF VIKAS DHULL, SPL. JUDGE,
(PC ACT), CBI 03, DWARKA COURTS, NEW
DELHI
CA No. 04/16
ID No. 440392/16
CNR No. DLSW010020952016
Pramod Kumar
S/o late R.B.Singh
Earlier R/o RZ25P, Indra Park
Gali No.34, Palam Colony
New Delhi110045
At present
R/o Flat No.101
Supreme Tower No.7
Sector 99, Noida
U.P.
... Appellant
State of NCT of Delhi
... Respondent
Date of institution of appeal : 02.02.2016
Date on which judgment reserved : 21.07.2017
Date on which judgment pronounced : 01.08.2017
1/46
CA No.04/16
Pramod Kumar Vs. State
JUDGMENT
1. The appellant has filed the present appeal challenging the judgment dated 18.11.2015 (hereinafter referred to as the impugned judgment) of the ld.trial court vide which he was convicted for the offence under Section 323/452/506/509 IPC and the order of sentence dated 09.12.2015 (hereinafter referred to as the impugned sentence order) vide which appellant was released on probation for six months.
2. The brief facts which are relevant for deciding the present appeal are that the present FIR was registered on 20.09.2010 pursuant to the directions issued under Section 156(3) Cr.P.C. by the Ld.MM vide order dated 21.07.2010.
2/46 CA No.04/163. The said FIR was registered on the basis of complaint dated 04.03.2010 of the complainant Smt.Kamla Devi.
4. In the said complaint, complainant had alleged that accused Neeraj, Rahul, Chhutkan, Renu, Rinku and Pramod Kumar (i.e. present appellant) had committed the offence of criminal intimidation, house trespass and simple hurt with the complainant. It was alleged that accused persons are the tenants at the first floor in the property of the complainant and the husband of complainant had given a notice to accused persons for vacation of their tenanted premises.
5. After receiving the notice of vacation of tenanted premises, accused persons had started creating nuisance on daily basis and were harassing the complainant and her family members just to pressurize her so that complainant and her family members should 3/46 CA No.04/16 Pramod Kumar Vs. State not ask for their eviction from tenanted premises.
6. It was alleged that on 30.01.2010 at 9.40 a.m., accused persons forcibly entered into the room of the complainant, in absence of her husband, and started abusing her in filthy language and thereafter, accused Neeraj had caught hold of complainant with her hair and had dashed her head against the wall and thereafter, complainant had fell on the floor. Thereafter, accused Rahul, Ranjyoti, Chhutkan and Pramod Kumar had started beating the complainant with fist and leg blows and they were also joined by accused Renu and Rinku. When the complainant raised alarm then her daughter Usha entered into the house and thereafter accused persons fled away.
7. It was also alleged that thereafter police was called at 100 number and PCR van had taken the complainant Kamla Devi to Deen Dayal Upadhyay 4/46 CA No.04/16 Pramod Kumar Vs. State hospital where her MLC was got done.
8. After the registration of FIR and during the pendency of investigation, all accused persons except appellant, had approached the Hon'ble High Court of Delhi seeking quashing of FIR. During the pendency, the matter was settled between the complainant and accused persons, except the appellant, before the Hon'ble High Court of Delhi. Therefore, FIR against other coaccused persons was quashed vide order dated 23.12.2010 of the Hon'ble High Court of Delhi passed in Crl.Misc.(C) No. 3983/10.
9. Pursuant to quashing of FIR against other co accused persons, investigation continued against the present appellant only.
10. During the course of investigation, statement of witnesses were recorded, result of the MLC of the 5/46 CA No.04/16 Pramod Kumar Vs. State complainant was obtained and site plan of the place of incident was prepared and after the completion of investigation, present appellant was charge sheeted for the offence under Section 451/323 IPC.
11. The ld.trial court after hearing the arguments on the point of charge had framed charge against appellant for the offence under Section 323/452/506/509 IPC to which appellant had pleaded not guilty and claimed trial.
12. At trial, prosecution had examined 08 witnesses.
13. PW1 Smt.Kamla Devi was the complainant of this case. PW2 Usha was the daughter of the complainant and also the alleged eye witness to the incident. PW3 Smt.Gyanti Devi was the neighbour of the complainant and was also witness to the incident. PW4 HC Rattan Singh had proved recording of FIR. PW5 Ct.
6/46 CA No.04/16Pramod Kumar Vs. State Kartar Singh, who deposed regarding arrest of appellant (wrongly mentioned as PW4). PW6 Dr.Dhananjay Kumar from Deen Dayal Upadhyay hospital deposed regarding MLC of complainant Kamla Devi (wrongly mentioned as PW5). PW7 Dr.Rishi, from Deen Dayal Upadhyay hospital had also deposed regarding MLC of complainant Kamla Devi prepared on 09.03.2010 (wrongly mentioned as PW6). PW8 SI Ranvir Singh was the investigating officer of this case and he had deposed regarding the investigation done by him (wrongly mentioned as PW7) and PW9 Sh.Jagdish Prasad Dubey, husband of complainant, who deposed regarding their dispute with the tenants (wrongly mentioned as PW8).
14. After the closure of prosecution evidence, appellant was examined under Section 313 Cr.P.C. and all the incriminating evidence coming on record was put to him.
7/46 CA No.04/1615. Appellant denied to be present at the house of complainant on the date of incident and also denied to have committed the offence with the complainant. Appellant further submitted that he is innocent and has been falsely implicated by the complainant as he was lawyer of accused/tenants in number of cases. Accused submitted to lead defence evidence.
16. Thereafter, in his defence evidence, accused examined 10 witnesses.
17. DW1 SI Ranbir Singh, who produced the record of DD register.
18. DW2 HC Vishram produced the record of Kalandra under Section 107/150 Cr.P.C. vide DD No. 5A dated 11.02.2010, PS Palam Village.
19. DW3 HC Manoj Kumar brought the FIR No. 8/46 CA No.04/16 Pramod Kumar Vs. State 76/10 registered on 31.03.2010.
20. DW4 was the appellant himself, who deposed regarding his false implication.
21. DW5 Ranjyoti Kumar, DW6 Rinku, DW7 Chutkan Sharma and DW8 Renu Devi were the witnesses, who were earlier tenants of the complainant and deposed that they were assaulted on the date of incident by the complainant and her family members. All these witnesses denied that appellant was present at the house of the complainant and had participated in the incident.
22. DW9 SI Manjeet Singh deposed regarding preparation of Kalandra under Section 107/150 Cr.P.C.against tenants and family of the complainant.
23. DW10 Sh. Gyan Prakash was the typist in Tis 9/46 CA No.04/16 Pramod Kumar Vs. State Hazari Courts and he deposed regarding presence of appellant in Tis Hazari Courts on 30.01.2010 between 9.15 a.m. to 9.30 a.m.
24. No other witness was examined by the defence.
25. The Ld.trial court thereafter had heard both the parties and vide impugned judgment, had convicted the appellant and had given him the benefit of probation vide impugned sentence order.
26. Aggrieved by the impugned judgment and impugned sentence order, appellant has approached this court.
27. Notice of the appeal as well as of the application under Section 5 of the Limitation Act, 1963 for condonation of delay, was issued to the respondent/State. On being served, Ld.Addl.PP for 10/46 CA No.04/16 Pramod Kumar Vs. State respondent/state chose not to file any reply.
28. I have heard appellant in person, who happens to be a practicing advocate, and Sh.V.K.Swami, substitute Ld.Addl.PP for respondent/state as well as Sh.A.K.Pandey and Sh.G.C. Mishra, Ld.counsels for complainant. I have also summoned the trial court record and have carefully perused the same.
29. Appellant had submitted, in support of his application seeking condonation of delay, that in the present case, delay has occurred of 19 days in filing the appeal as by mistake, the certified copy of impugned judgment and order was misplaced by the appellant and the same could be traced out on 29.01.2016 and thereafter, appeal was drafted and was filed on 01.02.2016. Accordingly, a prayer was made to condone the delay.
11/46 CA No.04/1630. On merits, it was submitted by the appellant that in the present case, ld.trial court has committed a grave illegality by convicting him.
31. It was submitted that prosecution evidence is unreliable and untrustworthy due to lot of contradictions in the testimony of witnesses.
32. It was submitted that the alleged incident is of 30.01.2010 and with regard to said incident, Kalandra under Section 107/150 Cr.P.C. was prepared by the police which is Ex.DW2/A and the said Kalandra was prepared against the tenants residing in the property of the complainant and the family members of the complainant. In the said Kalandra Ex.DW2/A, appellant was not named therein.
33. It was further submitted that during the course of inquiry of Ex.DW2/A, police had recorded the 12/46 CA No.04/16 Pramod Kumar Vs. State statement of various neighbours residing in the vicinity of the house of the complainant and none of the witnesses has remotely stated about the presence of appellant at the house of the complainant on the date of incident i.e. 30.01.2010.
34. It was further submitted that although PW1 Kamla Devi has deposed on oath that she has given a written complaint to the DCP regarding the incident dated 30.01.2010 but the same was not filed on record which leads to an adverse inference that no such complaint was given and even if the same was given, the same was not against the appellant.
35. It was further submitted that the first time the name of the appellant had cropped up is in the complaint dated 04.03.2010 made to the DCP, South West, Dwarka.
13/46 CA No.04/1636. It was further submitted that the name of the appellant was mentioned in the complaint dated 04.03.2010 Ex.PW1/A with malafide intention just to falsely implicate the appellant.
37. It was further submitted that since there was a delay of around more than a month in making the complaint against appellant, therefore, allegations against appellant have been concocted by the complainant.
38. It was further submitted that the reason for the false implication of appellant is not difficult to appreciate as appellant was the counsel of the tenants with whom the complainant, being the landlord, was having lot of litigations.
39. It was further submitted that around 16 cases were pending between the complainant/landlord and co 14/46 CA No.04/16 Pramod Kumar Vs. State accused tenants and in all cases, appellant was defending the tenants. Therefore, this was the sole reason for the false implication of appellant.
40. It was further submitted that one of the tenant's daughter, was molested by the soninlaw i.e. Radhika Prasad Tiwari of the complainant, who happens to be an advocate and regarding the said molestation, FIR No. 225/09, PS Palam Village was registered.
41. It was further submitted that at the instance of Radhika Prasad Tiwari, appellant has been falsely implicated in this case just because he happens to be the counsel of tenants.
42. It was further submitted that even testimony of PW1 Kamla Devi, who is the complainant in this case, is not corroborated by her medical evidence nor by other witnesses. Therefore, evidence of PW1 Kamla Devi was 15/46 CA No.04/16 Pramod Kumar Vs. State wrongly relied upon by the ld.trial court in convicting the appellant.
43. It was further submitted that even the evidence of PW3 Gyanti Devi, who happens to be the neighbour and alleged eye witness, was wrongly appreciated by the ld.trial court as she was never a witness to the incident and has falsely deposed against the appellant in contradiction to what has been deposed by PW1 Kamla Devi and PW2 Ms.Usha.
44. Lastly, it was submitted that on the date of incident, it was the tenants, who were assaulted by complainant and her family members and it was tenant Rinku, who had suffered injuries.
45. It was further submitted that in this case, appellant had examined Rinku as DW6 and she had also produced her MLC Ex.DW6/1 dated 30.01.2010 16/46 CA No.04/16 Pramod Kumar Vs. State regarding the injuries suffered by her at the hands of the complainant and her family members.
46. It was further submitted that the appellant had also examined other tenants in his defence i.e. DW5 Ranjyoti Kumar, DW7 Chutkan Sharma and DW8 Renu Devi, who all have proved that appellant was not present on the date of the incident and all the aforesaid witnesses were assaulted by the complainant and her family members. Accordingly, it was submitted since false and a fabricated case was made against appellant and evidence which had come on record also prove the falsity of present case, therefore, the ld.trial court committed grave illegality by convicting the appellant. Accordingly, a prayer was made to set aside the impugned judgment and impugned sentence order and acquit the appellant for the offence under Sections 323/452/506/509 IPC.
17/46 CA No.04/1647. On the other hand, Ld.Addl.PP for state and counsels for complainant have jointly opposed the prayer of appellant seeking condonation of delay on the ground that delay has not been properly explained in the present case.
48. It was submitted that appellant happens to be a practicing lawyer and it is not expected from him that he will misplace the certified copy of the impugned judgment and impugned sentence order. Accordingly, a prayer was made to dismiss the appeal on the ground of it being barred by limitation and delay being not properly explained.
49. On merits, it was submitted that ld.trial court has passed a reasoned judgment which does not call for any interference in the present case.
50. It was further submitted that testimony of PW1 18/46 CA No.04/16 Pramod Kumar Vs. State Kamla Devi/complainant is duly supported by her daughter PW2 Usha, who was also the eye witness to the incident and also by an independent witness i.e. PW3 Gyanti Devi, who is the neighbour of complainant.
51. It was further submitted that MLC of PW1 Kamla Devi/complainant also proves that she had suffered simple injuries on 30.01.2010.
52. It was further submitted that there is no delay in making complaint against appellant as immediately after the incident, complainant had gone to the police station Palam Village where she had given an oral complaint against the appellant but the same was not recorded by the police.
53. It was further submitted that when police did not record the complaint of the complainant, therefore, she was forced to give a complaint in writing to the DCP 19/46 CA No.04/16 Pramod Kumar Vs. State and thereafter, approached the court under Section 156(3) Cr.P.C. to get the present case registered. Therefore, delay in making the complaint was properly explained and was rightly appreciated by the ld.trial court in its impugned judgment. Accordingly, it was prayed that appeal be dismissed as ground put forth do not call for any interference in the impugned judgment.
54. I have considered the rival contentions and have carefully perused the record.
55. Firstly, I shall take up the application seeking condonation of delay of the appellant.
56. Appellant has contended that although he had applied for certified copy on 09.12.2015 and the same was made available on 14.12.2015 but since the certified copy of the impugned judgment and impugned sentence order was misplaced, therefore, he could not 20/46 CA No.04/16 Pramod Kumar Vs. State file the appeal within the prescribed period and accordingly, delay of 19 days has occurred.
57. The application of appellant is supported with an affidavit of appellant.
58. In the light of reason mentioned in the application duly supported with an affidavit of appellant, I am satisfied that appellant was prevented due to sufficient cause from filing the present appeal in time. Hence, the application filed is allowed and delay in filing the appeal is, accordingly condoned.
59. In the present case, appellant has been charged for the offence under Sections 323/452/506/509 IPC with regard to incident which took place at 9.40 a.m. on 30.01.2010 at the house of the complainant.
60. The first reason which creates a doubt in 21/46 CA No.04/16 Pramod Kumar Vs. State prosecution case is the Kalandra Ex.DW2/A (colly). It is an admitted position between the parties that with regard to incident of 30.01.2010, a kalandra under Section 107/150 Cr.P.C.was registered.
61. The investigating officer i.e. PW7 SI Ranvir Singh had admitted this fact in his crossexamination and the said fact has been duly proved by the appellant by way of examination of DW2 HC Vishram, who had produced the original Kalandra Ex.DW2/A and also by evidence of DW9 SI Manjeet Singh, who proved the Kalandra Ex.DW2/A (colly). Therefore, the only document which has come on record with regard to quarrel which took place on 30.01.2010 at the house of complainant is Ex.DW2/A (colly).
62. I have carefully perused Ex.DW2/A (colly) and the same has been filed against Chhutkan Sharma, Rinku Devi, Renu Devi, Ranjyoti and Neeraj Kumar 22/46 CA No.04/16 Pramod Kumar Vs. State (tenants) and family members of complainant Kamla Devi.
63. The Kalandra Ex.DW2/A (colly) also mentions in the list of witnesses the names of witnesses namely Dinesh Mehra, Chandra Prakash, Gokaren Nath Tiwari and Vijay Arora. The statement of aforementioned witnesses of Kalandra were also recorded and are part of Ex.DW2/A (colly).
64. None of the witnesses as mentioned in the Kalandra Ex.DW2/A (colly) i.e. Vijay Arora, Dinesh Mehra and Chandra Prakash, had stated anything about the presence of appellant. All they have stated is regarding the quarrel which took place between complainant Kamla Devi and her tenants. Therefore, the initial complaint made to the police which was converted into the Kalandra Ex.DW2/A (colly) does not prove the involvement of appellant in the alleged 23/46 CA No.04/16 Pramod Kumar Vs. State offence.
65. The ld.trial court had committed grave illegality by ignoring the Kalandra Ex.DW2/A (colly). The reason given by the ld.trial court for not considering the Kalandra Ex.DW2/A (colly) where the name of the appellant was absent, was that proceedings carried out by the police in the Kalandra Ex.DW2/A (colly) was separate to the investigation carried out in the FIR. It was further observed that after detailed and independent investigation, charge sheet was filed against the appellant in the present FIR. The reasoning given by the ld.trial court for ignoring Kalandra Ex.DW2/A (colly) is not acceptable as genesis of proceedings initiated under the Kalandra Ex.DW2/A (colly) as well as under the FIR was the same incident of 30.01.2010 which took place at the house of the complainant Kamla Devi. Further, the proceedings carried out vide Kalandra Ex.DW2/A (colly) was 24/46 CA No.04/16 Pramod Kumar Vs. State required to be given more weightage as the said proceedings were promptly undertaken immediately after the information regarding the incident came to the knowledge of the police. However, FIR in this case was registered on the basis of complaint dated 04.03.2010 and due to delay in the FIR which has not been explained and name of appellant being absent in Ex.DW2/A (colly), possibility of concoction and manipulation could not be ruled out. I am fortified in my reasoning by the judgments of the Hon'ble Supreme Court of India delivered in State of H.P. Vs. Gian Chand, (2001) 6 SCC 71 and Kilakkatha Parambath Sasi and others Vs. State of Kerala, AIR 2011 SC 1064. Hence, the ld.trial court overlooked the said fact while appreciating the evidence which had come on record.
66. Secondly, it has come in the evidence of PW1 Kamla Devi, who happens to be the complainant in this 25/46 CA No.04/16 Pramod Kumar Vs. State case, that immediately after the incident, she had gone to the police station Palam Village and had narrated about the entire incident but since no action was taken, therefore, she had given a written complaint to the concerned DCP. However, no complaint given to PS Palam Village or to the area DCP with regard to incident of 30.01.2010 or immediately thereafter had been brought on record.
67. The nonfiling of any police complaint of 30.01.2010 mentioning the name of appellant as an accused makes this court raise an adverse inference against the prosecution that no such complaint was given to PS Palam Village or to the DCP against appellant and that is why the same was not produced on record.
68. It has also come in the evidence of PW2 Usha, who happens to be the daughter of complainant Kamla 26/46 CA No.04/16 Pramod Kumar Vs. State Devi that it was she, who had called the police at 100 number. However, no record of complaint given at 100 number was produced in support of the fact that information was given at 100 number against the appellant.
69. No police official from the PCR was examined regarding the information received by them at 100 number.
70. Therefore, prosecution also did not prove on record that initial information sent at 100 number with regard to quarrel which took place on 30.01.2010 was made against appellant and coaccused tenants.
71. The only written complaint which has come on record against appellant is Ex.PW1/A dated 04.03.2010 on the basis of which, the present case was registered.
27/46 CA No.04/1672. In the said complaint, the allegations have been levelled against appellant for the first time, of he being instrumental in assaulting the complainant on 30.01.2010 alongwith coaccused tenants.
73. In the opinion of this court, the mentioning of name of appellant in the complaint Ex.PW1/A on 04.03.2010 is nothing but an after thought. The reason for the same is that between 30.01.2010 till 04.03.2010, there is no complaint which has come on record against the appellant with regard to incident dated 30.01.2010. Therefore, during this intervening period of 30.01.2010 and 04.03.2010, possibility of concoction and manipulation cannot be ruled out, the benefit of which has to go to the appellant.
74. What was the motive of mentioning the name of appellant for the first time in Ex.PW1/A will be discussed in the later part of the judgment.
28/46 CA No.04/1675. Thirdly, even the evidence of PW1 Kamla Devi/complainant does not inspire confidence and does not appear to be trustworthy.
76. As per the evidence of PW1 Kamla Devi/complainant, on 30.01.2010 at about 9.40 a.m., appellant alongwith coaccused tenants namely Ranjyoti, Chhutkan, Renu, Rinku, Neeraj and Rahul had entered into her room forcibly and thereafter, accused Neeraj had caught her from her head and had banged her head against wall and thereafter, when complainant had fell down then it was the appellant, who had given her leg and fist blows.
77. It was also deposed by PW1 Kamla Devi that initially, she was taken to Deen Dayal Upadhyay Hospital and from there, she was referred to Safdarjung Hospital for her medical examination.
29/46 CA No.04/1678. It was also deposed in her crossexamination that her daughter PW2 Usha also accompanied her to Deen Dayal Upadhyay Hospital.
79. The testimony of PW1 Kamla Devi stands contradicted by her own daughter i.e. PW2 Usha. It has come in the evidence of PW2 Usha that she did not accompany PW1 Kamla Devi to Deen Dayal Upadhyay Hospital and further, she also did not depose regarding the alleged banging of head of PW1 Kamla Devi by accused Neeraj.
80. Therefore, the testimony of PW1 Kamla Devi stands discredited by her own daughter PW2 Usha, who has not supported her in material particulars.
81. The other reason for doubting the credibility of PW1 Kamla Devi is her MLC Ex.PW5/A pertaining to 30/46 CA No.04/16 Pramod Kumar Vs. State incident of 30.01.2010.
82. In the MLC of complainant Ex.PW5/A, it is observed by the doctor that there are no fresh external injuries present on her body.
83. It is quite strange to note that PW1 Kamla Devi, who happens to be an old lady, aged about 67 years, and whose head was banged against wall and who was given fist and leg blows by appellant, would receive no external injuries as observed by the doctor in her MLC Ex.PW5/A. This fact also falsifies her deposition that she was assaulted on 30.01.2010 by the appellant and other coaccused tenants.
84. The other fact which makes the testimony of PW1 Kamla Devi untrustworthy is nonproduction of any medical record of Safdarjung Hospital.
31/46 CA No.04/1685. Although PW1 Kamla Devi had deposed that from Deen Dayal Upadhyay Hospital, she was referred to Safdarjung hospital but there is no medical document on record of Safdarjung hospital of complainant in support of her deposition.
86. PW1 Kamla Devi had deposed falsely regarding she being referred to Safdarjung hospital in an effort to show that her injuries were quite serious and that is why she was referred to Safdarjung hospital.
87. However, in absence of any record of Safdarjung hospital and having regard to the MLC of complainant Ex.PW5/A, it is difficult to believe that PW1 Kamla Devi was ever referred to Safdarjung hospital due to seriousness of her injuries. This fact also makes the testimony of PW1 Kamla Devi untrustworthy and doubtful.
32/46 CA No.04/1688. Fourthly, the ld.trial court had wrongly relied upon the testimony of PW3 Gyanti Devi, while convicting the appellant.
89. In the opinion of this court, the testimony of PW3 Gyanti Devi, of having witnessed the appellant assaulting PW1 Kamla Devi/complainant, is required to be disbelieved.
90. The reason for the same is that both PW1 Kamla Devi and PW2 Usha, in their evidence, have deposed that on shouting for help, 23 ladies from neighbourhood had come and on seeing the ladies, appellant had slipped away from the back door.
91. If the evidence of PW1 Kamla Devi and PW2 Usha is to be believed then possibility of PW3 Gyanti Devi, witnessing the entire incident of assault by appellant on complainant Kamla Devi, is required to be 33/46 CA No.04/16 Pramod Kumar Vs. State believed as immediately on the arrival of PW3 Gyanti Devi, appellant had run away from the rear door. Therefore, the ld.trial court wrongly based the conviction upon testimony of PW3 Gyanti Devi, who had not witnessed any incident of assault as per the testimony of PW1 Kamla Devi and PW2 Usha.
92. Fifthly, the reason which makes the prosecution case doubtful is the nonexplanation of injuries suffered by accused Rinku Devi against whom FIR was quashed by the Hon'ble High Court of Delhi vide order dated 23.12.2010 in Crl.Misc.(C) No. 3983/2010.
93. It was proved on record that accused Rinku Devi, who was the tenant of PW1/Complainant Kamla Devi, had suffered injuries in the incident of 30.01.2010. It is admitted in the crossexamination of PW1 Kamla Devi that on 30.01.2010, accused Rinku Devi received injuries in the quarrel.
34/46 CA No.04/1694. In the later part of the crossexamination, PW1 Kamla Devi deposed that she does not know who assaulted accused Rinku Devi and Renu.
95. The fact of accused Rinku receiving injuries in the incident of 30.01.2010 is further corroborated by Kalandra Ex.DW2/A (colly) wherein the fact of accused Rinku Devi receiving simple injuries has been duly mentioned and even the MLC of accused Rinku Devi has been annexed showing the injuries to be simple caused by a blunt object.
96. The other evidence which has come on record to support this fact is the testimony of defence witnesses i.e. DW5 Ranjyoti Kumar, DW6 Rinku, DW7 Chhutkan Sharma and DW8 Renu Devi, who were tenants of complainant Kamla Devi and against whom complaint was made with regard to the incident of 30.01.2010.
35/46 CA No.04/1697. In the evidence of DW5 to DW8, it has come on record that on 30.01.2010, DW6 Rinku was assaulted and injured by the family members of the complainant including Radhika Prasad Tiwari, soninlaw of the complainant.
98. Therefore, aforesaid evidence which has come on record proves beyond reasonable doubt that DW6 Rinku had indeed suffered simple injuries in the incident of 30.01.2010 and said fact is duly corroborated by the testimony of PW1 Kamla Devi.
99. However, the prosecution has not offered any explanation as to who caused the injuries on the person of DW6 Rinku.
100. To what extent the nonexplanation of injuries on the person of accused can prove fatal to the case of 36/46 CA No.04/16 Pramod Kumar Vs. State prosecution has been explained by the Hon'ble Supreme Court of India in the matter of State of Madhya Pradesh Vs.Misri lal (dead) and Ors., AIR 2003 SC 4089 wherein in para 17 and 18, it was held as follows:
17. The last and which appears to be fatal to the prosecution case is non explanation of the injuries sustained by the accused. As already said accused Mishrilal received as many as five injuries, which were dangerous to life. Madhusudan and Jamunanprasad received simple injuries. In Ex. P1 as well as in the entire deposition of PWs, the prosecution has not explained the injuries sustained by the accused. The defence version is that on being retreated the bullockcart of Babulal, the complainant party Maharaj Singh, Gopal, Mathura Lal, Lakhan, Jagdish, Mulia, Kailash and Karan Singh came with lathis and farsa. Mathura Lal hit Mishrilal's head with the farsa and Babulal, Maharaj Singh and Karan Singh beat Mishrilal with lathis. Madhusudan ran to save his father Mishrilal and they also beat him. When Jamunaprasad came to 37/46 CA No.04/16 Pramod Kumar Vs. State save, he was also beaten up and on that Jamunaprasad ran towards the house and made two fires in the air to save his father. It is the case of defence that the bullet, which struck Bhavarsingh, came from towards the house of Babulal. In the face of defence version, which competes in probability with that of the prosecution case, it was mandatory on the part of the prosecution to have explained the injuries sustained by the accused and non explanation of the injuries is fatal to the prosecution case. In Lakshmi Singh and others v. State of Bihar, (1976) 4 SCC 394, referring to earlier decisions in Mohar Rai v. State of Bihar, (1968) 3 SCR 525:
AIR 1968 SC 1281 : 1968 Cri LJ 1479, it was held by this Court:
"......where the prosecution fails to explain the injuries on the accused, two result follow : (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants...
...in a murder case, the nonexplanation of the injuries sustained by the accused at about the time of the occurrence or in the 38/46 CA No.04/16 Pramod Kumar Vs. State course of altercation is a very important circumstance from which the court can draw the following inferences :
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one....
....However there may be cases where the 39/46 CA No.04/16 Pramod Kumar Vs. State nonexplanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries."
18. In State of Rajasthan v. Madho, 1991(2) RCR(Crl.) 463 (SC) : AIR 1991 SC 1065 at page 1067 this Court held as under :
"The fact remains that both the respondents had sustained serious injuries, Kishna mainly on the skull whereas Madho on the skull as well as scapular region. If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident. It gives the impression that the 40/46 CA No.04/16 Pramod Kumar Vs. State witnesses are suppressing some part of the incident. The High Court was, therefore, of the opinion that having regard to the fact that they have failed to explain the injuries sustained by the two respondents in the course of the same transaction, the respondents were entitled to the benefit of the doubt as it was hazardous to place implicit reliance on the testimony of the inured PW2."
101. Similar view was expressed by the Hon'ble Supreme Court of India in the matter of Surender Paswan Vs. State of Jharkhand, 2004(SC) 742.
102. In Misri Lal's case (supra), the Hon'ble Supreme Court of India has held that where prosecution witnesses falsely deny the injuries and offer no explanation then they are deposing falsely with regard to sequence of events and it is not safe to rely upon their testimonies.
41/46 CA No.04/16103. It was also held by the Hon'ble Supreme Court of India that nonexplanation of injuries is further compounded by the fact of inimical relations between accused and complainant.
104. In the present case, it has come in the cross examination of PW1 Kamla Devi that relations between the tenants and that of PW1 Kamla Devi were not cordial and there used to remain constant quarrel between them on the ground of nonpayment of rent/ nonpayment of electricity bill. Further, it has been admitted in the cross examination of PW8 Sh.Jagdish Prasad Dubey that 16 civil/criminal cases were pending between family of complainant and tenants. Therefore, the relations between the family of accused/tenants and the family of the complainant were not cordial and were inimical.
42/46 CA No.04/16105. Therefore, in the light of inimical relations and nonexplanation of injuries of DW6 Rinku, who was earlier an accused in this case but later on FIR was quashed against DW6 Rinku on the ground of settlement between the parties, the evidence of PW1 Kamla Devi, PW2 Usha and PW3 Gyanti Devi cannot be believed as it is not safe to rely upon their testimonies.
106. Lastly, the defence of appellant in this case was that since he was the counsel for tenants of the complainant and he was also pursuing the molestation case of daughter of DW6 Rinku against Radhika Prasad Tiwari, soninlaw of the complainant registered vide FIR No. 225/09, PS Palam Village, therefore, he was falsely implicated, cannot be brushed aside, in the light of evidence which has come on record by the prosecution.
107. DW6 Rinku has corroborated the defence of 43/46 CA No.04/16 Pramod Kumar Vs. State appellant that with regard to molestation of her daughter on 30.06.2009, FIR was registered by her at PS Palam Village and due to registration of the case against Radhika Prasad Tiwari, soninlaw of the complainant, he used to threaten DW6 Rinku to falsely implicate her and her lawyer in a false case.
108. Same is the testimony of DW7 Chhutkan Sharma and DW8 Renu Devi.
109. The evidence of DW6, DW7 and DW8 probalizes the defence of appellant that he was falsely implicated in this case firstly, as he was appearing as a counsel for the tenants in all civil/criminal cases and secondly, he was pursuing FIR No. 225/09, PS Palam Village which was got registered by DW6 Rinku against Radhika Prasad Tiwari, soninlaw of the complainant.
110. In the light of above discussion, the evidence 44/46 CA No.04/16 Pramod Kumar Vs. State which was led on record by the prosecution was untrustworthy and unreliable due to name of appellant being absent in the Kalandra Ex.DW2/A, non explanation of delay in lodging the FIR against appellant, there being inconsistencies in the testimony of PW1 Kamla Devi, PW2 Usha and PW3 Gyanti Devi and on account of nonexplanation of injuries suffered by DW6 Rinku. Therefore, the ld.trial court committed grave illegality in convicting the appellant by relying upon the prosecution evidence. Hence, the appeal filed by appellant is allowed. Impugned judgment and impugned sentence order are accordingly, set aside. Appellant is acquitted for the offence under Sections 323/452/506/509 IPC. Personal bond/surety bond, if any of appellant is discharged.
111. In terms of Section 437A Cr.P.C., let appellant furnish personal bond in the sum of Rs.10,000/ with one surety in the like amount with undertaking to 45/46 CA No.04/16 Pramod Kumar Vs. State appear before the appellate court as and when he receives notice from it on 10.08.2017.
Announced in the open court (Vikas Dhull) Dated: 01.08.2017 Spl. Judge (PC Act) (CBI)03 Dwarka Courts/New Delhi 46/46